"nr 


Digitized  by  the  Internet  Archive 
in  2019  with  funding  from 
Duke  University  Libraries 


https://archive.org/details/attorneygeneralvOOmass 


3. 


SUPREME  JUDICIAL  COURT. 


SUFFOLK,  ss. 


IN  EQUITY. 


The  Attorney  General  vs.  The  Rector  and  Churchwardens  of 

Trinity  Church  &  Others. 


STATEMENT  OF  FACTS. 

This  is  an  information  purporting  to  be  filed  bj  the  Attorney 
General,  at  the  relation  of  the  Convention  of  the  Protestant  Episco¬ 
pal  Church  in  the  Diocese  of  Massachusetts ;  and  of  Frank  Croston 
and  Christian  Peterson,  for  themselves  and  in  behalf  of  the  other 
poor  of  ‘Christ  Church ;  against  the  Rector  and  Churchwardens  of 
Trinity  Church,  the  vestrymen,  and  the  corporation  of  that  church, 
certain  persons  claiming  to  be  minister,  wardens,  and  vestrymen 
of  King’s  Chapel,  the  religious  society  claiming  to  be  proprietors  of 
pews  in  King’s  Chapel,  and  the  Rector  and  Wardens  of  Christ 
Church. 

The  information  having  been  amended  by  agreement,  by  inserting 
the  name  of  Thomas  Bulfinch,  claiming  to  have  been  elected  a  vestry 
man  of  King’s  Chapel  since  it  was  filed,  in  the  stead  of  Stevenson 
and  Ward,  named  therein  ;  and  having  been  taken  for  confessed 
against  the  Rector  and  Wardens  of  Christ  Church;  the  other  parties 
agree  that  the  cause  shall  be  set  down  for  hearing  upon  the  informa¬ 
tion  and  the  answers  of  Trinity  Church  and  of  the  Proprietors  of 
King’s  Chapel,  with  such  modifications  of  the  legal  effect  thereof  as 
may  be  created  by  the  following  admissions  and  documents  ;  both 
parties  reserving  all  just  right  of  exception  to  the  competency  or 
relevancy  of  any  averment,  either  in  the  information  or  answers,  and 
of  any  fact  or  testimony  contained  in  this  agreed  statement,  or  in 
any  of  the  writings  attached  thereto. 

The  informant  and  relators  do  not  hereby  bind  themselves  to  the 
effect  of  any  of  the  allegations  in  the  answers  in  regard  to  any  ques- 

1 


2 


tion  of  knowledge  or  expectation  of  the  testator,  or  of  his  intention, 
except  so  far  as  may  result  from  the  will  itself,  together  with  such 
distinct  averments  of  facts  and  circumstances  as  are  properly  admis¬ 
sible  in  aid  of  the  construction  of  the  will,  or  from  other  legal  proofs 
in  the  cause.  Nor  shall  either  party  be  bound  by  any  averment  of 
the  other  as  to  legal  inferences,  or  as  to  the  effect  of  any  decision 
of  this  Court.  Nor  shall  any  averments  in  the  answers  in  regard 
to  the  expense  of  living  or  other  expenses  in  the  city  of  Boston  at 
the  time  of  the  death  of  the  testator,  or  as  to  the  decrease  in  the 
value  of  money  since  that  time,  be  regarded  as  admitted  in  the 
case,  except  so  far  as  is  admitted  or  shown  by  the  other  facts  and 
averments  in  the  case,  and  by  general  history,  of  which  the  Court 
will  take  judicial  notice.  Any  question  as  to  the  identity  of  the 
corporation  now  known  as  King’s  Chapel  with  the  corporation  of 
that  name  existing  at  the  date  of  Price’s  will,  or  as  to  its  capacity  to 
take  under  that  will,  as  arising  from  change  of  creed,  or  form  of  wor¬ 
ship  or  organization,  is  submitted  to  the  Court  upon  the  facts  herein 
stated. 

But  if,  upon  the  hearing  of  the  cause,  any  question  of  fact  shall 
arise  in  regard  to  which  the  Court  shall  deem  it  important  to  be  more 
specifically  informed ;  and  especially  should  it  be  deemed  material  to 
the  final  disposition  of  the  cause  to  determine  whether  King’s  Chapel 
ever  accepted  the  testator’s  devise  in  the  manner  required  by  the 
will ;  and  whether  the  alterations  in  the  Liturgy  in  1785  were  adopted 
by  sufficient  vote  of  the  proprietors  of  pews  in  the  Chapel ;  any  such 
question  of  fact  may  by  the  Court  be  referred  to  one  of  the  counsel¬ 
lors  of  this  Court,  to  be  agreed  upon  by  the  parties  or  named  by  the 
Court,  whose  report  shall  be  of  the  same  force  as  the  verdict  of  a 
jury. 

The  King’s  Chapel  was  the  only  church  of  the  Church  of  Eng¬ 
land  in  Boston  until  1722,  when  Christ  Church  was  erected  and 
dedicated.  William  Price  contributed  to  the  expense  of  building 
Christ  Church  in  1722,  and  from  1726  to  1743  was  a  warden  or  ves¬ 
tryman  of  that  church.  During  his  life,  there  were  no  other  churches 
of  the  Church  of  England  in  Boston,  except  the  King’s  Chapel, 
Trinity  Church,  and  Christ  Church,  in  all  of  which  he  owned  pews. 

It  is  stated  in  the  records  of  King’s  Chapel  that  upon  the  decease 
of  their  rector,  the  Rev.  Mr.  Samuel  Miles,  Mr.  Henry  Harris  being 
then  assistant  minister,  the  “  congregation  of  King’s  Chapel  passed 
the  following  votes,  and  in  pursuance  thereof  the  Rev.  Roger  Price 
was  selected  and  became  rector  of  the  church.” 

“Att  a  meeting  of  the  Congregation  of  the  Kings  Chappel  in 
Boston  Wednesday  the  13  of  March  1727-8  by  adjournment. 


3 


“  The  Question  was  put  whether  the  Revd.  Mr.  Henry  Harris  has 
a  right  to  join  with  the  Congregation  in  church  affaires  as  the  minis¬ 
ter  of  Kings  Chappell  for  the  time  being.  Then  it  was  proposed 
whether  the  question  as  above  written  should  be  put  to  vote  or  not, 
it  passed  in  the  negative.” 

“  If  it  be  your  minds  that  his  Excellency  Generali  Nicholson  and 
Mr.  Thomas  Sanford  merchh  in  London  be  the  persons  impowered,  or 
in  the  absence  of  one  of  them  the  other  be  impowered,  to  present  a 
clergyman  for  institution,  quallified  as  by  the  foregoing  vote,  [namely, 
well  affected  to  the  King  and  Protestant  Succession,  a  friend  to  the 
Church  of  England,  of  ability  and  morals,  &c.,]  in  the  name  A  behalf 
of  this  congregation  within  six  months  from  the  death  of  the  late 
Revd.  Mr.  Miles  to  our  right  reverend  Diocecan  the  Lord  Bishop  of 
London  to  succeed  the  Reverend  Mr.  Miles  in  this  church,  manifest, 
&c.  It  passed  in  the  affirmative.” 

“  The  question  was  put,  If  it  be  your  minds  that  the  committee 
or  the  majority  of  them  forthwith  remit  20 £  sterling  out  of  the 
church  stock  to  Mr.  Thomas  Sanford  to  pay  the  passage  of  the 
clergyman  who  shall  be  presented  by  Gen1.  Nicholson  or  Mr.  Sanford 
or  either  of  them  for  institution  to  succeed  the  late  Revd.  Mr.  Samuel 
Miles,  manifest  it  &c  ?  It  passed  in  the  affirmative. 

‘  If  it  be  your  minds  that  the  committee  now  chosen  or  the 
majority  of  them  be  impowered  to  remit  such  sum  or  sums  of  money 
as  they  or  the  majority  of  them  shall  find  absolutely  necessary  to 
defend  our  right  of  presentation  to  this  church  against  any  person 
or  persons  whomsoever  shall  dispute  the  same,  manifest  it  &c.  It 
passed  in  the  affirmative.” 

In  Dr.  Greenwood’s  History  of  King’s  Chapel  is  the  following 
statement,  which  for  the  purposes  of  this  case  is  to  be  taken  as  true : 
“  Another  difficulty  was  raised  respecting  the  right  of  presentation 
to  the  rectorship  of  the  Chapel.  The  congregation  were  afraid  that 
the  Bishop  of  London  would  claim  it,  whereas  they  insisted  on  its 
belonging  to  themselves,  and  voted  to  defend  it  at  any  expense  against 
any  who  might  dispute  it.  Their  agent  in  this  business  in  London 
was  Mr.  Thomas  Sandford.  He  had  several  interviews  with  the 
Bishop,  in  some  of  which  he  was  accompanied  by  Mr.  Charles 
Apthorp,  who  was  then  in  England,  and  an  amicable  settlement  was 
the  result.  Even  on  his  first  visit  to  the  Bishop,  the  latter  told  him 
that  he  did  not  pretend  to  the  right  of  presentation,  but  thought  that 
it  was  in  the  congregation  who  supported  the  minister ;  and  it  was 
agreed  that  his  lordship  should  recommend  some  fit  person  as  rector, 
who  should  be  the  person  whom  Mr.  Sandford,  as  the  agent  of  the 


4 


congregation,  should  present  to  his  lordship  for  his  license.  Accord¬ 
ingly,  Mr.  Roger  Price  was  recommended,  presented,  and  licensed. 
The  Bishop  says  of  him,  in  a  letter  written  in  April,  1729  :  ‘  He  has 
been  long  known  to  me,  and  is  one  whom  I  am  willing  to  entrust 
with  the  power  of  commissary  for  inspecting  the  lives  and  manners 
of  the  clergy,  if  he  succeed  in  that  place ;  and  I  think  a  better  ser¬ 
vice  cannot  be  done  the  congregation  than  the  inducing  both  parties 
to  unite  in  him.’  ”  Mr.  Price  was  the  Bishop’s  Commissary  in  New 
England  from  about  this  time  until  1753.  For  the  general  nature  of 
that  office,  reference  may  be  made  to  Dr.  Greenwood’s  History. 

In  1746,  Mr.  Price  resigned  his  office  of  rector,  and  the  Rev. 
Dr.  Henry  Caner,  then  a  clergyman  in  Episcopal  orders  in  Con¬ 
necticut,  was  elected  and  instituted  without  any  direct  authority 
from  the  Bishop,  and  conducted  to  the  Chapel  by  the  Rev.  Mr. 
Commissary  Price.  Until  1776  the  assistant  ministers  of  the  Chapel 
received  an  annual  grant  from  the  King,  and  were  appointed  by  the 
Bishop  of  London,  and,  in  accordance  with  an  agreement  between 
the  ministers  and  the  proprietors,  had  a  voice  in  the  government  of 
the  church. 

When  William  Price  made  his  will,  the  edifice  now  known  as 
King’s  Chapel  was  owned  by  a  body  politic  existing  by  prescription 
and  known  as  the  Proprietors  of  King’s  Chapel,  the  pewrs  therein 
being  owned  and  possessed  by  individual  proprietors  thereof,  each  of 
whom  vras  a  member  of  such  corporation  as  such  proprietor;  and,  at 
the  time  last  mentioned,  this  organization  was  in  communion  with  the 
Church  of  England  as  by  law  then  established.  Upon  the  evacu¬ 
ation  of  Boston  on  the  17th  of  March,  1776,  by  the  British  troops, 
the  rector,  Dr.  Caner,  went  with  them,  taking  with  him  the  church 
registers  of  births  and  marriages,  the  vestments  and  plate,  and 
part  of  the  records  of  the  vestry.  The  assistant  minister  left  the 
church  in  November  of  that  year,  the  congregation  was  dispersed, 
and  the  doors  of  King’s  Chapel  closed  until  1782,  except  that  in  1777 
the  use  of  the  chapel  was  granted  by  those  proprietors  of  the  pews 
who  remained,  to  the  congregation  of  the  Old  South  Church,  who 
occupied  it  for  about  five  years.  In  September,  1782,  the  wardens  of 
King’s  Chapel  who  had  been  elected  that  year  invited  the  Rev.  James 
Freeman  to  officiate  as  reader;  and  in  April,  1783,  he  was  chosen 
pastor  by  said  proprietors,  and  they  consented  to  such  alterations  of 
the  service  merely  as  the  political  state  of  the  country  required.  In 
1785,  by  vote  of  the  proprietors,  a  few  alterations  in  the  Liturgy  were 
made,  which  consisted  principally  in  the  omission  of  the  doctrine  of 
the  Trinity;  and  the  Chapel  has  never  been  occupied  since  by  any 


5 


church  or  society  in  connection  or  communion  with  the  Church  of 
England  or  the  Protestant  Episcopal  Church  in  the  United  States. 
Dr.  Caner  never  returned  to  this  country  ;  was  not  deprived  of  his 
office  by  any  episcopal  authority,  or  in  any  other  manner  than  as 
aforesaid.  So  far  as  known,  he  was  never  settled  elsewhere  ;  and, 
after  he  left  as  aforesaid,  lived  in  England,  where  he  died. 

The  present  edifice  of  Trinity  Church  was  built  in  1828-9,  and  has 
never  been  specially  fitted  up,  repaired,  or  maintained,  with  a  view  to 
the  accommodation  of  the  Price  sermons.  The  churchwardens  and 
vestrymen  of  Trinity  Church  have  always  been  proprietors  of  pews 
therein,  and,  since  the  statute  of  1830,  chapter  83,  members  of  the 
corporation  of  Trinity  Church.  The  amount  expended  by  the  rector 
and  wardens  of  said  church,  or  by  the  corporation  of  Trinity  Church, 
for  missions,  has  been  the  average  sum  of  $1150  in  each  year  for  the 
last  twenty  years,  out  of  collections  taken  up  and  otherwise  obtained 
for  the  purpose.  The  income  received  by  Trinity  Church  from  the 
Greene  foundation  and  other  sources,  for  the  support  of  the  rector 
and  assistant  minister,  has  amounted  to  an  average  sum  in  each  year, 
for  the  last  twenty  years,  of  $2800 ;  and,  from  pew  rents,  to  the 
average  sum  of  $6438  during  the  same  period ;  which  sums  have 
been  paid  towards  the  support  of  the  rector  and  assistant  minister. 

The  rents  and  income  of  the  Price  estate,  while  received  by  King’s 
Chapel,  from  1814  to  1828,  amounted  to  the  sum  of  $14,662.16  ; 
the  expenditures  charged  to  said  fund  amounted  to  the  sum  of 
$4,537.53  ;  and  the  residue  was  applied  to  the  general  expenses 
of  King’s  Chapel.  Prom  1829  to  the  present  time,  the  rents  of  that 
estate,  received  annually  by  Trinity  Church,  have  amounted  to  the 
sum  of  $3420 ;  of  which  the  expenditures  charged  to  said  fund  have 
amounted  in  each  year  to  $306  ;  and  of  the  balance,  one  half,  viz. 
$1557,  has  been  annually  paid  to  the  Proprietors  of  King’s  Chapel, 
and  the  other  half  applied  to  the  general  expenses  of  Trinity  Church; 
and  the  appropriation  by  the  Rectors  and  Wardens  of  Trinity  Church 
has  been  made  with  the  knowledge  and  approval  of  the  vestry  of  that 
church.  From  1814  to  the  present  time,  the  sum  of  $96.80  has  been 
annually  applied  in  payment  of  the  twenty  pounds  sterling  mentioned 
in  the  will :  to  wit,  forty  shillings  to  the  church  holding  the  estate  ; 
sixteen  pounds  for  the  preaching  of  sermons;  and  two  pounds  to  the 
poor  of  Trinity  Church,  King’s  Chapel,  and  Christ  Church  ;  and  no 
further  sum  has  been  paid  or  appropriated  for  the  preaching  of 
sermons  or  for  the  poor,  specially  from  this  fund. 

The  proceedings  in  1860  and  1861  in  the  Convention  of  the  Pro¬ 
testant  Episcopal  Church  in  the  Diocese  of  Massachusetts,  relating  to 


6 


this  devise,  set  forth  in  the  information,  were  known  to  all  the  respond¬ 
ents  and  the  application  of  a  committee  of  the  Convention  on  the  23d 
of  March,  1861,  to  the  Rector  and  Churchwardens  of  Trinity  Church, 
and  their  answer  to  that  application,  were  known  to  the  vestrymen 
of  Trinity  Church. 

In  the  case  of  the  Rector  and  Churchwardens  of  Trinity  Church 
against  Stodder  and  others,  in  which  final  judgment  was  rendered  at 
November  term  1828  of  this  Court,  the  only  agreement  on  file  (ex¬ 
cept  an  assent  to  a  formal  amendment  of  the  writ)  is  as  hereto 
annexed,  and  marked  “  C;  ”  and  the  signers  thereof  were  authorized 
counsel  and  attorneys  of  the  parties  whom  they  therein  assumed  to 
represent.  Copies  of  the  opinion  of  the  full  Court  after  the  first 
trial,  and  of  so  much  of  the  record  of  that  case  as  follows  the  state¬ 
ment  of  the  pleadings,  are  also  annexed,  and  are  marked  respectively 
“  A  ”  and  “  D.” 

The  annexed  certified  copies  of  extracts  from  the  Province  valu¬ 
ation  of  1771,  signed  by  the  assessors  of  Boston,  marked  “E,”  and  from 
the  earliest  existing  tax  books  of  the  town  of  Boston,  marked  “  F,” 
may,  if  by  law  admissible  and  competent,  be  used  as  evidence  for  the 
informant  and  relators.  Neither  the  valuation  book  of  ward  9  for 
1780,  nor  any  Province  or  town  books  of  valuation  or  assessment  for 
any  previous  year,  nor  for  the  years  1781-3,  have  been  found.  The 
valuations  of  the  estate  devised  by  Price,  as  shown  by  the  tax  books 
of  the  town  and  city  of  Boston,  from  1784  to  1862,  are  set  forth  in 
the  schedule  hereto  annexed,  and  marked  “G;"  and,  so  far  as  com¬ 
petent  evidence,  may  be  referred  to  by  either  party. 

The  following  maps  of  Boston,  purporting  to  be  published  by 
William  Price  in  1722,  1733,  1743,  and  1769,  may,  if  admissible  and 
competent,  be  referred  to  by  the  informant: 

1.  “The  Town  of  Boston  in  New  England  by  Capt.  John  Bonner 
1722  Aetatis  suse  60.”  “Engraven  and  Printed  by  Fra:  Dewing 
Boston  N.E.  1722.  Sold  by  Capt.  John  Bonner  and  Willm.  Price 
against  ye  Town  House  where  may  be  had  all  Sorts  of  Prints, 
Mapps  Ac.”  Upon  this  map  is  an  “  Explanation,”  containing  these 
statistics  :  “  Streets  42,  Lanes  36,  Alleys  22.  Houses  near  3000, 1000 
Brick,  rest  Timber.  Near  12,000  People.” 

2.  “  A  New  Plan  of  ye  Great  Town  of  Boston  in  New  England  in 
America  with  the  many  Additionall  Buildings  and  New  Streets  to 
the  Year  1733.”  Dedicated  to  Governour  Belcher  by  William  Price, 
and  “  Printed  for  and  Sold  by  Win.  Price  at  ye  Kings  Head  and 
Looking  Glass  in  Cornhill.”  Upon  it  is  this  statement:  “This  Town 
hath  been  Settled  103  Years,  its  Number  of  Houses  about  4000  and 


Inhabitants  about  18,000.  In  it  are  2  Churches  of  England,  8  Con¬ 
gregational  Meeting  Houses,”  &c. 

3.  “  A  New  Plan  of  ye  Great  Town  of  Boston  in  New  England  in 
America  with  the  many  Additionall  Buildings  and  New  Streets  to  the 
Year  1743.”  Similar  to  the  second,  but  stating  that  “  This  Town 
hath  been  Settled  113  Years,  its  Number  of  Houses  about  4000  and 
Inhabitants  about  20,000.  In  it  are  3  Churches  of  England,  10  Con¬ 
gregational  Meeting  Houses,”  &c.  “In  the  year  1735  this  town  was 
divided  into  12  Wards  by  a  vote  of  the  Inhabitants,”  as  shown  upon 
the  plan,  of  which  No.  9  includes  Price’s  house  and  shop. 

4.  “A  New  Plan  of  ye  Great  Town  of  Boston  in  New  England  in 
America  with  the  many  Additionall  Buildings  and  New  Streets  to 
the  Year  1769.”  “This  Town  hath  been  Settled  139  Years,  its  Num¬ 
ber  of  Houses  about  4000,  and  Inhabitants  about  20,000.  In  it  are  3 
Churches  of  England,  10  Congregational  Meeting  Houses,”  &c. 
Wards  as  before. 

The  deposition  of  William  H.  Gardiner,  Esquire,  taken  by  the 
respondents,  is  made  part  of  this  statement  of  facts,  subject  to  all 
right  of  exception  by  the  other  party  to  its  admissibility  or  legal 
effect. 

Upon  the  whole  case,  the  Court  may  give  such  relief  as  the  in¬ 
formant  and  relators  may  be  entitled  to  claim,  if  any.  Otherwise  the 
information  is  to  be  dismissed. 


Isaac  F.  Redfield, 
S.  Bartlett, 

E.  D.  Sohier, 


for  Trinity  Church 
and  the  Wardens 
and  Vestry  Defts. 


Horace  Gray,  Jr., 

for  the  Informant  and  Belators. 


Reserved  for  a  hearing  by  the  whole  Court. 


T.  METCALF,  J.  S.  J.  C. 


Feb.  18th,  1864. 


8 


DEPOSITION  OF  WILLIAM  H.  GARDINER. 

First  Interrogatory.  Were  you  or  not  of  counsel  for  the  plain¬ 
tiffs  in  the  suit  The  Minister  and  Churchwardens  of  Trinity  Church 
vs.  Jonathan  Stodder  et  al.,  pending  in  the  Supreme  Judicial  Court 
for  the  County  of  Suffolk,  and  finally  disposed  of  therein  in  the  year 
1828?  If  so,  give  the  names  of  counsel  associated  with  you,  and 
also  of  the  counsel  for  the  defendants. 

Answer.  I  brought  the  suit  as  attorney  for  the  demandants, 
and  was  retained  as  junior  counsel  expressly.  The  gentlemen  whom 
I  was  associated  with  as  counsel  were  Charles  Jackson  (then  lately 
retired  from  the  Supreme  Bench,  and  acting  as  chamber  counsel 
only),  Daniel  Webster,  Benjamin  Gorham,  and  Samuel  Hubbard 
(afterwards  on  the  Supreme  Bench),  who  were  relied  on  to  act  with 
me  as  counsel  in  Court.  These  were  the  regularly  retained  counsel. 
In  addition,  Mr.  William  D.  Sohier  and  Mr.  Samuel  D.  Parker,  who, 
being  pewholders  in  the  church,  declined  taking  retainers,  offered 
their  professional  services  gratuitously,  and  rendered  very  efficient 
service.  They  were  consulted  as  freely  as  the  retained  counsel  in 
every  important  step  in  the  cause.  The  gentlemen  whom  I  met 
in  Court  as  counsel  for  the  Chapel  were  my  old  master,  William  Pres¬ 
cott  (afterwards  Judge  Prescott),  Daniel  Davis  (then  the  Solicitor 
General),  William  Sullivan,  and  Charles  P.  Curtis;  and,  beside  these 
gentlemen,  I  sometimes  met  Mr.  William  Minot,  acting  apparently  as 
counsel,  but  he  was  at  the  time,  I  believe,  a  warden  of  the  church, 
and  may  have  acted  in  that  capacity.  I  omitted  to  state,  with  refer¬ 
ence  to  Trinity  Church,  that  Mr.  Samuel  D.  Parker  was  the  chairman 
of  a  committee  appointed  by  the  proprietors  of  pews  to  attend  to  the 
prosecution  of  the  claim. 

Second  Interrogatory.  If  said  cause  was  argued  to  the  full  Court, 
and  any  opinion,  order,  or  disposition  made  thereof,  please  state 
about  what  time  this  occurred,  and  whether  or  not  it  was  declared 
by  the  Court  that  the  justices  thereof  were  divided  in  opinion,  or 
was  the  fact  known  to  you,  and  how  ? 

Answer.  The  suit  was  begun  in  September,  1824  ;  carried  through 
the  October  term  of  the  Boston  Court  of  Common  Pleas,  on  the  old 


9 


fiction  of  a  judgment  on  demurrer  ;  and  was  entered  at  the  November 
term  following  of  the  Supreme  Court  for  Suffolk,  and  brought  to 
trial  before  the  jury  before  Chief  Justice  Parker  on  the  18th  and  19th 
of  January,  1825.  The  case  was  fully  opened  to  the  jury,  and  much 
evidence  introduced  on  either  side,  when  the  Chief  Justice  suggested 
whether  there  would  really  be  any  thing  for  the  jury  to  settle ;  and 
thereupon,  after  a  brief  conference  between  the  counsel  at  the  bar, 
it  was  arranged  that  a  formal  verdict  should  be  taken  for  the  tenants, 
subject  to  the  opinion  of  the  Court,  the  whole  Court,  upon  the  ques¬ 
tions  of  law  that  had  been  raised,  and  upon  a  report  to  be  made  of 
the  evidence  introduced,  and  an  agreement  that  either  party  might 
introduce  any  further  evidence,  either  assented  to  by  the  other  party, 
or  determined  by  the  Court  to  be  admissible  and  material.  I  was 
particularly  struck,  in  the  discussion  at  the  bar  and  with  the  Chief 
Justice,  with  the  sagacity  and  adroitness  of  my  associate  counsel, 
Mr.  Hubbard.  Proof  had  been  made  by  the  defendants,  the  tenants, 
of  a  formal  acceptance  of  the  donation  under  Price’s  will,  by  the 
Chapel  Society,  at  two  different  periods;  one  in  1809,  after  the  death 
of  the  last  tenant  for  life ;  and  one  as  long  ago  as  1789,  which  was  a 
surprise  to  the  counsel  of  Trinity  Church,  but  was  nevertheless  after 
those  changes  in  the  constitution  of  the  Chapel  Church,  which  inca¬ 
pacitated  them,  according  to  our  construction,  from'  accepting  the 
donation.  And,  besides,  we  contended  that  the  acceptance  of  1809 
was  too  late,  being  after  the  expiration  of  the  particular  estate  during 
which  —  no,  at  which  point  —  as  we  held,  the  remainder  must  vest  in 
one  or  other  of  the  two  churches.  Judge  Prescott,  to  avoid  the 
objections  to  both  these  acceptances,  started  another  point,  that  it 
must  be  presumed,  from  all  the  circumstances  in  the  case,  that  there 
had  been  a  formal  acceptance  by  Dr.  Caner  and  his  wardens,  who 
left  the  country  in  1776;  which  acceptance  would  have  been  while 
the  church  continued  in  all  particulars  as  it  was  at  the  date  of  Mr. 
Price’s  will.  Mr.  Hubbard  was  afraid  of  having  any  thing  go  to  the 
jury.  He  wished  to  have  every  thing  referred  to  the  Court ;  and  he 
so  contrived  to  meet  Mr.  Prescott’s  new  point,  and  so  to  put  it  to  the 
Chief  Justice,  as  to  lead  him  to  look  at  the  point  suggested  as  a  legal 
presumption,  and  not  a  presumption  of  fact.  With  the  zeal  of  a 
young  lawyer,  I  was  rather  desirous  of  going  to  the  jury  ;  but  Mr. 
Hubbard  overruled  me :  and  I  afterwards  found  he  was  right ;  being 
told  by  one  of  the  jury,  whom  I  knew,  that  they  had  quite  made  up 
their  minds  to  find  a  verdict  against  the  demandants.  It  was  the 
ingenuity  of  Mr.  Hubbard,  which  turned  Mr.  Prescott’s  point,  in 
the  mind  of  the  Chief  Justice,  into  a  question  of  law,  whereas  it  was 

2 


10 


in  reality  a  question  of  fact.  This  disposition  of  the  cause  led  us  to 
perceive  that  it  was  of  the  utmost  importance  that  the  ancient 
records  -of  the  King’s  Chapel,  supposed  to  have  been  carried  away 
by  the  old  rector  when  he  left  the  country  as  a  refugee,  should  be 
found,  if  possible.  A  special  agent  was  sent  to  Halifax,  whither  Dr. 
Caner  had  first  proceeded,  to  make  search  in  all  likely  places  there. 
This  being  unsuccessful,  a  special  agent  was  employed  in  London, 
who  made  search  first  in  the  office  of  the  Bishop  of  London,  who  had 
ecclesiastical  charge  of  all  the  churches  in  the  colonies,  and  also  at 
the  several  places  in  England  where  Dr.  Caner  had  lived,  and  at  the 
place  where  he  died.  All  this  delayed  the  cause  until  March  term, 
1827 ;  when  it  was  argued  to  the  Court,  on  the  7tli,  8th,  and  9th  of 
March.  We  heard  nothing  from  the  Court  until  June,  1828;  when 
they  made  a  disposition  of  the  case,  which,  with  what  they  said  in 
relation  to  it,  will  best  appear  by  the  paper  which  I  now  introduce. 
It  is  an  official  report  of  the  case  by  Octavius  Pickering  (the  then 
reporter),  and  appended,  marked  “A.”  The  peculiar  language,  by 
which  it  is  said  that  “  a  majority  of  the  Court  are  not  of  opinion  that 
they  were  in  a  condition  to  make  one,”  is  to  be  translated  by  the  fact, 
perfectly  well  known  to  the  bar  at  the  time  — though  I  cannot  state 
how  with  certainty  —  that  the  Court  were  equally  divided  upon  the 
main  question  which  had  been  submitted  to  them ;  namely,  the  iden¬ 
tity  of  the  Chapel  Society,  at  the  time  of  the  acceptances  of  1789 
and  1809,  with  the  Society  existing  in  1770,  and  the  competency  of 
the  former  to  accept  the  donation.  It  was  even  knoAvn,  or  supposed 
to  be  known,  at  the  bar,  how  the  particular  Judges  had  divided.  I 
remember  its  being  a  subject  of  conversation  at  the  bar,  as  proof  of 
the  eminent  judicial  integrity  of  that  Court,  that  they  did  not  allow 
their  judgment  upon  questions  of  law  to  be  in  the  slightest  degree 
affected  by  their  religious  biases :  for  it  was  said  that  Judge  Morton, 
the  only  Episcopalian  on  the  bench,  had  sided  with  the  Chief  Justice 
against  the  demandants  ;  and  that  Judge  Wilde,  a  usual  worshipper 
at  the  King’s  Chapel,  had  sided  with  Judge  Putnam  in  favor  of  the 
demandants’  claim,  the  latter  also  being  understood  to  be  a  Unita¬ 
rian. 

Third  Interrogatory.  Whether  or  not,  after  such  disposition  of 
said  case,  the  Justices  of  said  Court,  or  any  and  which  of  them,  and 
whether  in  the  presence  of  the  others  or  not,  advised  or  suggested  to 
the  counsel  of  either  or  both  parties  any  thing,  and  what,  upon  the 
propriety  of  a  compromise?  State,  as  nearly  as  you  can  recollect,  all 
that  occurred,  if  any  thing. 

Anstcer.  That  question  I  cannot  answer  so  distinctly  and  posi- 


11 


tively  as  the  others,  for  the  reason  that  I  have  nothing  in  writing  to 
refresh  my  recollection  of  this  ancient  transaction ;  but  it  lies 
strongly  in  my  mind,  that  on  some  occasion,  either  on  the  morning 
of  the  deliver}7-  of  the  opinion  above  given,  or  at  some  time  after, 
such  a  suggestion,  intimation  by  inquiry  or  otherwise,  was  made  by 
the  Chief  Justice,  seconded  by  Judge  Putnam,  to  some  of  the  coun¬ 
sel  on  each  side  ;  and  that  this  occurred  in  the  presence  of  the  other 
Judges,  who  said  nothing.  I  should  explain  that  at  that  time  it  was 
much  the  habit  of  a  few  members  of  the  bar  to  meet  the  Judges  for  a 
few  minutes  just  before  the  opening  of  the  Court,  in  the  Law  Library, 
or  the  Judges’  lobby  adjoining  it;  when  sometimes  a  short  conver¬ 
sation  was  had,  or  at  least  a  remark  made,  relative  to  some  case 
pending.  My  belief  is  that  on  one  of  these  occasions  the  suggestion 
to  which  I  have  referred  was  made,  to  the  effect  that  the  parties 
should  consider  whether  the  scandal  of  an  obstinate  litigation  between 
two  Christian  religious  societies  might  not  be  avoided  by  some  com¬ 
promise  of  the  matter  in  dispute.  I  cannot  say  whether  this  was 
after  or  before  the  above  mentioned  announcement  of  an  order  for  a 
new  trial.  My  impression  is  that  it  was  immediately  before  that 
announcement;  and  that  the  conversation  was  with  Mr.  Curtis  and 
myself,  with  some  of  the  other  counsel  on  both  sides.  I  should 
explain  my  first  statement,  as  to  the  want  of  any  writing  to  refresh 
my  memory  on  this  subject,  by  saying  that  last  winter  I  had  the  mis¬ 
fortune  to  lose  by  casualty  all  my  old  law  papers,  or  nearly  all ; 
amongst  them,  no  doubt,  my  original  briefs  and  minutes  of  the  pro¬ 
ceedings  in  this  suit.  Some  persons  who  thought  the  paper  more 
valuable  than  the  contents  got  access  to  them  where  they  were 
stored  in  closets  in  an  attic,  and  carried  them  off  by  bags  and  baskets 
full  at  a  time,  to  sell  to  the  paper-maker  brokers  ;  which  process  went 
on  till  nearly  all  were  gone  before  it  was  discovered. 

Fourth  Interrogatory .  Were  arrangements  afterwards  made  by  the 
counsel  of  both  parties  for  a  compromise  ?  and  whether  or  not  did  all 
the  respective  counsel  of  the  parties  advise  such  compromise  ?  and 
was  or  not  any  doubt  suggested  by  any  of  the  counsel  as  to  the  power 
of  both  said  parties  to  make  such  compromise  ?  Was  or  not  such 
compromise  consummated  by  an  indenture  bearing  date  21st  Novem¬ 
ber,  1828  ? 

Answer.  Arrangements  were  afterwards  made  by  the  counsel  of 
both  parties  for  a  compromise.  It  was  advised  by  all  of  them  on  both 
sides.  I  never  heard  the  slightest  doubt  suggested,  by  either  of  the 
counsel  or  any  other  person,  at  that  time,  as  to  the  power  of  the  two 
churches  to  settle  this  matter  by  compromise.  The  compromise 


12 


agreed  upon  in  its  germ  appears  by  a  paper  which  I  now  produce 
and  annex,  marked  “  B.”  This  was  the  substance  of  a  compromise 
agreed  upon,  which,  after  further  conferences  between  the  counsel 
and  the  parties,  was.  finally  expanded  into  a  long  indenture  of  four 
parts;  which,  I  believe,  is  the  same  as  is  annexed  to  the  answer  of 
Trinity  Church,  and  appears  to  have  been  dated  November  21,  1828. 
I  would  further  state,  in  reference  to  the  advice  of  counsel,  that  before 
concluding  this  indenture  of  compromise  the  committee  of  the  pro¬ 
prietors  of  Trinity  Church,  through  Mr.  Samuel  D.  Parker,  their 
chairman,  desirous  not  to  take  upon  themselves  undue  responsibility 
in  the  matter,  thought  proper  to  take,  and  did  obtain,  a  written  paper 
or  papers,  signed  by  Mr.  Jackson,  Mr.  Webster,  Mr.  Hubbard,  Mr. 
Gorham,  Mr.  Soliier,  and  myself,  unanimously  advising  and  recom¬ 
mending  the  compromise  proposed. 

Fifth  Interrogatory.  Please  state  whether  said  compromise  was 
or  was  not  made  after  the  discovery  of  the  lost  records  of  King’s 
Chapel. 

Answer.  It  was  after  that  discovery  ;  and  the  production  of  those 
records,  found  to  be  silent  as  to  any  acceptance  of  the  Price  Donation 
by  the  ante-Revolutionary  rector  and  wardens  of  King’s  Chapel,  was 
the  final  cause  of  the  compromise ;  the  counsel  of  King’s  Chapel  hav¬ 
ing,  until  then,  unshaken  confidence  in  the  soundness  of  their  title. 

First  Cross-Interrogatory .  Were  you,  at  the  time  of  the  interviews 
and  transactions  of  which  you  have  testified,  the  attorney  or  coun¬ 
sel  of  the  rector  and  churchwardens  of  Trinity  Church  only,  or  of 
the  vestrymen  and  the  corporation  of  that  church?  or  of  what,  if  any 
other  person,  officer,  or  corporation,  connected  with  or  interested  in 
that  church,  or  in  the  property  derived  from  William  Price? 

Answer.  I  considered  myself  the  counsel  of  the  rector  and  war¬ 
dens,  as  the  legal  corporation  to  whom  the  devise  was  made  for  the 
benefit  of  the  church  or  parish ;  and  also  as  counsel  for  the  pro¬ 
prietors  of  pews,  who  constituted  the  parish  or  society,  and  by  whom 
I  was  retained ;  and  of  the  vestrymen,  so  far  as  they  acted  for  either 
of  those  two  bodies.  Whether  I  had  any  distinct  authority  or  not 
from  the  vestrymen,  as  such,  I  do  not  now  distinctly  remember.  I 
have  no  doubt  they  knew  of  all  that  was  done  by  me  in  the  premises, 
and  I  have  no  recollection  that  they  dissented  from  any  thing. 

Second  Cross-Interrogatory.  Of  what  persons  or  corporations  con¬ 
nected  with  that  church  or  King’s  Chapel,  or  interested  in  the  prop¬ 
erty  derived  from  said  Price,  were  the  other  counsel  whom  you  have 
named  attorneys  or  counsel  ? 


13 


Answer.  I  presume  they  were  all  retained,  who  were  retained  at 
all,  by  the  committee  of  the  proprietors  of  pews,  of  which  Mr.  Samnel 
D.  Parker  was  chairman  on  the  one  side.  I  have  no  means  of 
knowing  whom  the  gentlemen  who  acted  for  the  Chapel  represented, 
further  than  appears  by  the  records  and  proceedings  of  the  Court. 

Third  Gross-Interrogatory.  Were  any  persons,  corporations,  or 
public  officers,  parties  to  the  conversations  or  transactions  aforesaid, 
except  as  representing  the  parties  of  record  to  that  suit? 

Answer.  I  don’t  know.  The  defendants  in  the  suit  were  Stodder 
and  Frobisher,  occupants  of  the  building.  The  rector  and  wardens  of 
King’s  Chapel,  and  proprietors  of  that  church,  one  or  both,  as  the 
records  will  show,  I  presume,  came  in  aid  of  the  title  of  their  tenants. 
I  remember  no  other  person,  present  at  any  formal  conferences  on  the 
subject,  than  the  representatives  of  the  parties  to  the  record,  and  of 
the  several  corporate  bodies  I  have  named. 

Fourth  Cross-Interrogatory.  Did  you  draw  up  the  report  upon 
which  the  case  of  Trinity  Church  vs.  Stodder  was  argued  to  the  full 
Court?  Please  produce  a  copy  of  that  report. 

Answer.  I  did,  no  doubt,  mainly  draw  up  that  report.  It  was 
printed  for  the  Court ;  but  I  have  no  copy. 

Fifth  Cross-Interrogatory .  Does  that  report  truly,  fully,  and  ac¬ 
curately  state  the  proceedings  and  evidence  in  the  case  ? 

Answer.  The  report  must  speak  for  itself.  I  suppose  it  does.  It 
was  doubtless  intended  to. 

Sixth  Cross-Interrogatory .  What  became  of  the  deposition  of  Dr. 
Freeman,  referred  to  in  that  report?  and  of  the  other  original  papers 
in  that  case  ? 

Answer.  I  know  not. 

Seventh  Cross-Interrogatory .  Was  any  agreement  of  parties  or 
counsel  filed  in  Court  in  that  case  (except  an  assent  to  a  formal 
amendment  of  the  writ),  other  than  the  agreement,  a  copy  of  which 
is  annexed,  and  marked  “C”? 

Ansiver.  I  do  not  know.  I  think  it  likely  several  were  filed  in 
the  course  of  the  proceedings.  Whether  the  paper  now  shown  me  is 
a  true  copy  of  any  paper  filed  in  the  case,  is  more  than  I  know. 
Having  read  it,  I  answer  that  it  reads  very  probable ;  and  I  believe  it 
to  be  a  true  copy.  I  suppose  so. 

Eighth  Cross-Interrogatory.  Did  you  ever  file  in  the  case  any 
agreement  or  memorandum  of  terms  of  compromise,  or  statement 
that  a  compromise  had  been  agreed  on  ? 

Answer.  Not  that  I  remember.  I  don’t  know  whether  I  ever  did 
or  not. 


14 


Ninth  Cross-Interrogatory.  Where  and  how  was  the  lost  record 
discovered  ? 

Answer.  I  was  told  that  it  was  found  by  Mr.  James  T.  Austin,  in 
a  chest  of  papers  of  Mr.  James  Ivers,  formerly  a  warden  of  the  King’s 
Chapel ;  and  I  heard  at  the  time  where  the  chest  was  found  —  either 
in  a  garret  of  Mr.  Austin’s  house,  or  at  some  sugar-bakery,  where  Mr. 
Ivers  carried  on  business  —  but  I  am  not  sure  of  this.  I  remember 
distinctly  when  I  was  first  informed  of  it,  by  Solicitor  Davis,  in  the 
Supreme  Court ;  and  I  remember  that,  like  a  young  lawyer,  I  at  first 
considered  it  absolutely  decisive  of  the  case ;  but  after  sundry  con¬ 
ferences  with  my  elders,  and  instructions  from  them  as  to  how  pre¬ 
suming  a  jury  might  be,  I  became  a  wiser  man,  and  coincided  with 
them  in  the  opinion  that  half  a  loaf  was  better  than  no  bread,  and  that 
the  risk  of  a  total  loss  had  better  not  be  taken. 

Tenth  Cross-Interrogatory.  Were  the  contents  of  that  record 
known  to  you  or  other  counsel  of  Trinity  Church,  when  the  terms  of 
compromise  were  agreed  upon  between  the  two  churches  ? 

Answer.  Certainly.  It  was  known  to  us  that  the  record  contained 
nothing  on  the  subject  of  Mr.  Price’s  will ;  at  any  rate,  not  concerning 
the  acceptance  under  it. 

Eleventh  Cross-Interrogatory.  Was  it  ever  suggested  by  any  of 
the  Judges  or  counsel  that  a  compromise  would  cut  off  any  rights 
of  persons  or  public  officers  claiming  or  asserting  an  interest  or  title 
in  any  charity  created  by  the  will  of  Price  ? 

Answer.  No.  No  such  question  could  have  suggested  itself,  I 
think,  under  the  construction  put  upon  Mr.  Price’s  will  by  all  the 
counsel,  so  far  as  I  know. 

Twelfth  Cross-Interrogatory.  Had  any  process  then  been  com¬ 
menced  or  threatened  or  suggested,  to  assert,  establish,  or  enforce 
such  a  charity? 

Answer.  Not  that  I  know  of. 


W.  H.  Gardiner. 


15 


A. 

OPINION  OF  COURT  IN  TRINITY  CHURCH  vs.  STODDER. 

Sup.  Jud.  Court.  Mar.  T.  1828.  In  Suffolk. 

Trinity  Church  vs.  Stodder  &  ah 

Per  Curiam.  We  are  agreed  that  by  the  will  of  Price  the 
estate  in  controversy  is  either  a  vested  remainder  with  a  conditional 
limitation,  or  a  contingent  remainder,  depending,  in  either  case,  on 
an  acceptance  in  pursuance  of  the  will.  An  acceptance  by  the  tenants 
has  been  sufficiently  proved,  but  a  majority  of  the  Court  are  not  of 
opinion  that  they  were  in  a  condition  to  make  one ;  but  judgment 
cannot  be  rendered  in  favor  of  the  demandants,  for  there  may  have 
been  an  acceptance  in  the  time  of  Dr.  Caner.  Whether  there  was  an 
acceptance  by  him  and  his  wardens  has  been  referred  to  us  as  a 
question  of  law  ;  but  the  point  is  whether  from  lapse  of  time,  loss  of 
records,  &c.,  a  certain  act  may  be  presumed  to  have  been  done,  and 
this  is  a  question  of  fact.  It  must  be  determined  by  a  jury  there¬ 
fore  whether  there  was  an  acceptance  by  Dr.  Caner ;  and  for  that 
purpose  a  new  trial  is  granted.  It  will  not  be  necessary  to  go  into 
evidence  of  other  points  in  the  case. 

A  copy,  Octavius  Pickering,  Reporter ,  Sfc. 

Salem,  Oct.  6,  1828. 

Dear  Sir,  I  send  you  the  substance  of  what  fell  from  the  Ch. 
Justice  in  the  case  of  Trinity  Church  vs.  Stodder  &  al.,  for  which 
you  will  pay  me  $1.50  when  we  happen  to  meet. 

Yours  truly,  0.  Pickering. 


Charles  P.  Curtis,  Esq.,  Boston. 


MEMORANDUM  OF  COMPROMISE. 


Rector  and  Wardens  of  Trinity  Church  vs.  Jonathan  Stodder  &  al. 

The  Committee,  Rector  and  Wardens,  with  the  concurrence  of  the 
Vestry  and  Proprietors  of  Trinity  Church,  propose  the  following  terms 
of  compromise  of  the  above  named  suit:  — 

A  general  and  conclusive  verdict  shall  be  taken,  and  judgment 
entered  for  the  demandants,  who  shall  hold  the  estate  devised  by  Mr. 
Price,  and  execute  the  trust  as  nearly  as  may  be  according  to  their 
own  discretion,  and  without  the  participation  or  interference  on  the 
part  of  the  Minister,  Wardens,  Vestry  or  Proprietors  of  the  Chapel: 
the  income  of  the  estate  shall  be  applied,  1st,  to  defray  the  expenses 
of  the  trust ;  2d,  for  necessary  repairs,  of  which  a  joint  committee 
of  gentlemen  chosen  equally  by  each  society  shall  judge  ;  3d,  one 
half  the  residue  shall  be  paid  over  annually  by  the  demandants  to  the 
proper  persons  authorized  to  receive  it  by  the  Chapel  Society ; 
excepting  that  one  half  of  so  much  of  the  back  rents  as  have  been 
received  by  the  said  Chapel  Society  since  the  demandants’  entry  shall 
be  deducted  from  the  annual  payments  aforesaid,  by  instalments  of 
five  hundred  dollars  annually ;  the  said  deduction  to  begin  at  the  first 
annual  payment  after  the  decease  of  the  Rev.  Dr.  Freeman. 

Acceded  to. 


C. 

AGREEMENT  ON  FILE  IN  TRINITY  CHURCH  vs.  STODDER. 

Supreme  Judicial  Court.  Suffolk.  Nov.  Term,  1824.  N.  E.  76. 

The  Ministers  &  Churchwardens  of  Trinity  Church  vs.  Jonathan 

Stodder  &  al. 

Agreement  of  Parties. 

It  is  agreed  that  James  Freeman,  D.D.,  who  calls  himself  the  Rec¬ 
tor  of  King’s  Chapel  at  Boston  aforesaid,  and  Ebenezer  Oliver  and 
Joseph  May,  Esquires,  who  call  themselves  the  Churchwardens  of  said 


17 


King’s  Chapel,  and  who  in  their  said  supposed  capacities  claim  to  be 
in  law  and  in  fact  the  same  corporation  which  existed  and  was  known 
by  the  name  of  the  Rector  and  Churchwardens  of  King’s  Chapel  at 
said  Boston  A.D.  1770,  and  who  also  claim  to  be  lessors  of  said  Stod- 
der  and  Frobisher,  and  to  hold  the  demanded  premises  in  fee  by  virtue 
of  their  said  offices,  may  come  in  aid  of  the  said  Stodder  and  Frobisher, 
and  be  received  as  joint  defendants  with  them,  to  answer  the  afore¬ 
said  plea  or  count  of  the  said  demandants,  with  liberty  to  prove  any 
title  by  way  of  defence,  which  the  said  Freeman  and  others  may  have 
to  the  demanded  premises. 

But  it  is  understood,  that  nothing  herein  shall  be  construed  to  be 
an  admission  on  the  part  of  the  demandants  of  the  present  legal  exist¬ 
ence  of  any  corporation  or  body  known  by  the  name  of  the  Rector 
(or  Minister)  and  Churchwardens  of  King’s  Chapel,  having  capacity 
as  such  to  take  and  hold  the  demanded  premises,  or  to  sue  and  defend 
respecting  the  same ;  nor  an  admission  that  said  corporation  (if  it  be 
proved  that  any  such  exist)  is  an  Episcopal  Church ;  or  that  it  is  the 
same  corporation  or  the  same  church  with  that  known  by  the  same 
name  A.D.  1770;  nor  that  said  Freeman  is  the  legal  rector  or  min¬ 
ister,  and  that  said  Oliver  and  May  are  the  legal  wardens  thereof;  or 
that  they  are  the  legal  successors  of  the  Rector  and  Churchwardens 
of  the  King’s  Chapel  who  were  A.D.  1770;  or  that  they  have  any 
right,  by  virtue  of  any  such  supposed  offices,  to  claim  and  hold  the 
demanded  premises  under  the  devise  of  William  Price,  formerly  of 
said  Boston,  deceased,  as  against  the  title  of  the  demandants  under 
the  same  devise,  and  their  entry  unto  said  lands  under  the  same. 
And  it  is  also  agreed,  that  the  demandants  may  amend  their  writ  and 
declaration ;  that  the  final  judgment  of  the  Court  in  this  action  shall 
be  binding  and  conclusive  upon  the  present  Rector  or  Minister  and 
Churchwardens  of  said  King’s  Chapel,  and  their  successors,  and  upon 
the  church  or  society,  and  proprietors  of  pews  of  said  King’s  Chapel, 
as  well  as  upon  the  said  Stodder  and  Frobisher,  in  the  same  manner 
and  to  the  same  extent,  as  it  is  binding  and  conclusive  on  said 
demandants  and  their  successors,  and  the  church  jointly  and  pro¬ 
prietors  of  pews  by  them  represented. 

W.  H.  Gardiner,  Attorney  for  Demandants. 

Dan’l  Davis,  7 

Wm.  Sullivan,  >  for  Defendants. 

Wm.  Prescott,  ) 


3 


18 


D. 

RECORD  IN  TRINITY  CHURCH  vs.  STODDER. 

[After  stating  the  pleadings,  the  above  agreement  “  C,”  and  the 
amendment  of  the  plea  accordingly.]  And  issue  being  thus  joined, 
the  case  after  a  full  hearing  was  committed  to  a  jury  duly  empanelled 
and  sworn  according  to  law,  to  try  the  same  upon  the  evidence,  and 
the  said  jury  returned  their  verdict  therein  upon  oath  against  the 
demandants,  that  is  to  say,  the  said  jury  found  that  the  said  Stodder 
and  Frobisher  did  not  disseize  the  demandants  in  manner  and  form 
as  the  demandants  in  their  said  declaration  had  alleged ;  which  ver¬ 
dict  was  returned  subject  to  the  opinion  of  the  whole  Court  upon 
certain  matters  of  law  arising  out  of  the  evidence  in  the  case,  and 
according  to  the  decision  whereof  the  said  verdict  was  to  be  set 
aside  and  judgment  entered  for  the  demandants,  or  to  be  affirmed 
and  judgment  entered  thereon  for  the  tenants,  or  a  new  trial  to  be 
ordered,  as  law  and  justice  in  the  opinion  of  the  Court  should 
require ;  and  thence  said  appeal  was  continued  from  term  to  term 
until  the  term  begun  and  holden  at  said  Boston  on  the  first  Tues¬ 
day  of  March  A.D.  1827,  when  and  where  the  parties  were  fully 
heard  b}'  the  Court  upon  the  matters  of  law  reserved  as  aforesaid ; 
and  thence  said  appeal  was  further  continued  from  term  to  term  for 
advisement  and  for  the  opinion  of  the  Court  upon  the  matters  of 
law  aforesaid,  until  the  term  begun  and  holden  at  said  Boston  on  the 
first  Tuesday  of  March  A.D.  1828,  when  the  aforesaid  verdict  was 
set  aside,  and  a  new  trial  ordered ;  and  afterwards  at  this  term  of  the 
same  Court,  begun  and  holden  at  said  Boston  on  the  second  Tuesday 
of  November  A.D.  1828,  it  was  suggested  upon  the  record  by  the 
attorney  of  said  demandants  that  pending  the  said  suit  and  since 
the  filing  of  the  aforesaid  plea  the  said  Ebenezer  Oliver,  who  had 
appeared  as  one  of  the  churchwardens  of  the  said  King’s  Chapel, 
was  deceased,  and  the  said  Joseph  May,  who  had  appeared  as  the 
other  churchwarden  of  said  King’s  Chapel,  had  resigned  his  said 
office,  and  that  Francis  J.  Oliver  and  William  Minot,  both  of' said 
Boston,  Esquires,  had  been  elected  to  the  said  offices,  and  then  were 
churchwardens  of  said  King’s  Chapel ;  and  thereupon  the  said  Francis 
J.  Oliver  and  William  Minot  came  respectively,  and  were  received 
in  the  respective  places  of  said  Ebenezer  Oliver  and  Joseph  May  as 


19 


the  churchwardens  of  said  King’s  Chapel,  and  jointly  with  the  said 
James  Freeman  as  rector  of  the  same  appeared  in  aid  of  the 
said  Stodder  and  Frobisher,  and  together  with  the  said  Stodder 
and  Frobisher  and  Freeman  undertook  to  defend  against  the  title 
of  the  said  demandants  to  the  said  demanded  premises  upon  the 
same  issue  as  aforesaid ;  and  immediately  thereafter  the  same  issue 
as  aforesaid  was  committed  to  another  jury  duly  empanelled  and 
sworn  according  to  law  to  try  the  same  upon  the  evidence  before 
them,  and  the  said  jury  returned  their  verdict  therein  upon 
oath,  as  follows,  to  wit,  “The  jury  find  that  the  minister,  wardens, 
vestrymen,  and  proprietors  of  pews  for  the  time  being  of  King’s 
Chapel  would  not  accept,  and  that  the  minister  and  churchwardens 
of  the  same  have  not  accepted,  the  donation  of  William  Price 
in  and  by  his  last  will  and  testament  and  the  codicil  thereto,  in 
manner  and  form  as  are  thereto  prescribed ;  and  further  find  that 
the  said  Stodder  and  Frobisher  did  disseize  the  demandants  in  man¬ 
ner  and  form  as  the  demandants  have  thereof  alleged.”  And  all  and 
singular  the  premises  being  seen  and  understood,  it  is  considered  by 
the  Court  that  the  said  demandants  recover  judgment  for  the  seizin 
and  possession  of  the  said  demanded  premises  against  the  said  Stod¬ 
der  and  Frobisher,  and  the  said  James  Freeman  as  rector  or  minister 
and  Francis  J.  Oliver  and  William  Minot  as  churchwardens  of  the 
said  King’s  Chapel  in  their  corporate  capacity,  and  for  their  costs 
of  suit;  and  thereupon  the  said  demandants,  freely  remitting  to  the 
said  tenants  the  whole  amount  of  the  costs  of  suit  recovered  as  afore¬ 
said,  agreed  to  sue  out  their  writ  of  execution  upon  the  judgment 
aforesaid  for  the  possession  only  of  the  said  demanded  premises  with- 
,  out  costs. 

Habere  Facias  poss.  issued  Nov.  22d,  1828. 


E. 

EXTRACTS  FROM  THE  PROVINCE  VALUATION  OF  1771. 

A  List  of  the  Polls  and  of  the  Estates,  Real  and  Personal,  of 
the  several  Proprietors  and  Inhabitants  of  the  Town  of  Boston,  in  the 
County  of  Suffolk,  taken  pursuant  to  an  Act  of  the  General  Court  of 
the  Province  of  the  Massachusetts  Bay,  entitled  An  Act  for  enquir- 


20 


ing  into  the  Rateable  Estates  of  this  Province,  passed  in  the  Eleventh 
Year  of  his  present  Majesty’s  Reign,  by  the  Subscribers,  Assessors 
in  said  Town  duly  elected  and  sworn,  viz. 


S 

9 

©  •  u  • 

xx  =  a 
^ 

a 

© 

g  ® 

i-  cTt.  © 

®*2  ®  a 

2 

a  ~  £ 

V-  Ef 

■3  B  o 
c  «■“ 

o  a  >» 

-  o  O  S 

o< 

§ 

©  , 

£  ®  2 
©  ^ 

e3  hX) 

Men’s  Names  who 

x  a 

o  X  3  r3 

73  t* 

£  2 

©  ^  ~  £ 

p  — 

are  reateable 

5  u  o 

O  a;  ••—i 

X  rs  *2 

t 

~  x  ° 

— 

|.8J 

©  C  x 

8  «  c  a 

T  © 

®  "3 

3  ©  ee  & 

©  o 

t-  © 

2  o  ^  s  a 

<  £  a  0_ 
o  o  ^  cj 

x  X  3  °  3 

* 

C  73 

£  a 

o  J§  o'  f 

c  5  o  £•= 

* 

®  c-  fci 
§  2  © 

~  x  — 

r-  ?  c  a  a 

K  f-H 

<  ©  c. 

«=  x  x 

Widow  Price 

l 

£  s. 

40  0 

1 

£  s. 

40  0 

£  8. 
50  0 

Assessors  Office,  Boston,  October  1st,  1771. 

I 

Pursuant  to  an  Act  entitled  an  Act  for  enquiring  into  the  rate¬ 
able  Estates  of  this  Province,  We  the  Subscribers,  Assessors  for  the 
Town  of  Boston  duly  Elected  &  Sworn,  have  taken  a  List  of  the  Polls 
&  of  the  Estates  real  &  personal  of  the  Inhabitants  of  said  Town 
as  Contained  in  the  Seventy  Rolls  herewith  exhibited,  all  which  has 
been  perform’d  according  to  our  best  Skill  &  Judgment. 

JOHN  KNEELAXU, 

BENJA.  CHURCH,  ) 

JONATHAN  BROWN,  '  Assessors 
BELCHER  NOYES,  V  for  the  Town 
DANL.  PECKER,  V  of  Boston. 
MOSES  DESHON,  ) 

GILES  HARRIS, 


I 


Commonwealth  of  Massachusetts,  ss.  Boston,  February  17,  1864. 
I  hereby  certify  that  the  above  are  true  extracts  from  the  Valuation 
Returns  of  1771  of  the  Province  of  Massachusetts  Bay,  preserved 
among  the  Archives  in  my  custody  as  Secretary  of  the  Common¬ 
wealth. 

Oliver  Warner, 

Secretary. 


21 


F. 

EXTRACTS  FROM  BOOKS  OF  ASSESSORS  OF  BOSTON  FOR  1780. 
1.  Extract  from  “  Taking  Book ,  Ward  No.  9,  1780.” 


Names. 

Polls. 

Rents. 

Widow  Price  . 

• 

200 

2.  Extract  from  “  Tax  Book ,  Ward  No.  9,  1780.” 


STATE  TAX. 

TOWN  &  COUNTY  TAX. 

Names. 

Polls. 

Rents. 

Estate. 

Polls. 

Rents. 

Estate. 

Widow  Price 

12.15.0. 

6.6.0. 

3.  Extract  from  “  Valuation  Book ,  Ward  No.  7,  1780.” 


Names. 

Yearly  Rents. 

6  years  Income. 

Personal  Estate. 

Profits  6  pr  cent. 

Joseph  Callender 

200 

72 

836 

William  Davis 

200 

72 

100 

Benjamin  Hammett . 

200 

72 

2100 

Simeon  Mayo 

200 

72 

800 

Lendell  Pitts  . 

200 

72 

2500 

Samuel  Pitts  . 

200 

72 

742 

Habijah  Savage  . 

200 

72 

718 

Charles  Sigourney  . 

200 

72 

1200 

4.  Extract  from  “  Taking  Book ,  TFarJ  Wo.  7,  1780.” 


Names. 

Polls. 

Rents. 

Observations. 

Joseph  Callender . 

2 

200 

Ironmonger. 

William  Davis . 

1 

200 

Merchant. 

Benjamin  Hammett . 

1 

200 

Merchant. 

Simeon  Mayo . 

2 

200 

Merchant. 

Lendell  Pitts . 

2 

200 

Merchant. 

Samuel  Pitts . 

2 

200 

Merchant. 

Habijah  Savage . 

1 

200 

Merchant. 

Charles  Sigourney . 

2 

200 

Merchant. 

22 


5.  Extracts  from  “  Tax  Boole ,  Ward  JVo.  7,  1780.” 


STATE  TAX. 

TOWN  &  COUNTY  TAX. 

Names. 

Polls. 

Rents. 

Estate. 

Polls. 

Rents. 

Estate. 

Joseph  Callender  . 

20.0.0 

12.15.0 

148.  0. 

10 

9.18.0 

6.6.0 

73.  3.0 

William  Davis 

10.0.0 

12.15.0 

17.14. 

2 

4.19.0 

6.6.0 

8.15.0 

Benjamin  Hammett 

10.0.0 

12.15.0 

371.17. 

6 

4.19.0 

6.6.0 

183.15.0 

Simeon  Mayo  . 

20.0.0 

12.15.0 

141.13. 

4 

9.18.0 

6.6.0 

70.  0.0 

Lendell  Pitts  . 

20.0.0 

12.15.0 

442.14. 

2 

9.18.0 

6.6.0 

218.15.0 

Samuel  Pitts  . 

20.0.0 

12.15.0 

131.  7. 

11 

9.18.0 

6.6.0 

64.18.6 

Habijah  Savage  . 

10.0.0 

12.15.0 

127.  2. 

11 

4.19.0 

6.6.0 

62.16.6 

Charles  Sigourney 

20.0.0 

12.15.0 

212.10. 

0 

/ 

9.18.0 

6.6.0 

105.  0.0 

To  Francis  Shaw,  Esqre  One  of  the  Collectors  of  the  Town  of 
Boston.  You  are  directed  to  collect  the  Sums  in  this  List,  &  in 
Number  One  &  Nine,  amounting  to  the  Sum  of  Sixty  two  Thousand, 
four  hundred,  forty  eight  pounds,  Seven  shillings  <fc  Seven  pence. 
And  pay  as  follows,  vizi  To  Henry  Gardner  Esqre  Treasurer  & 
Receiver  General  of  the  State  of  the  Massachusetts  Bay,  or  his  Suc¬ 
cessor  in  said  Office,  Forty  one  thousand,  four  hundred,  eighty  eight 
pounds,  twelve  shillings  three  pence,  To  David  Jeffries,  Esqre 
Treasurer  &  Receiver  for  the  County  of  Suffolk,  or  his  Successor  in 
said  Office,  Nine  hundred  &  one  pounds,  eight  shillings,  To  David 
Jeffries,  Esqre  Treasurer  for  the  Town  of  Boston,  or  his  successor  in 
said  Office,  Twenty  thousand,  forty  seven  pounds  Seventeen  shillings 
&  ten  pence,  Pursuant  to  this  our  Warrant  28th  day  of  March  1780. 


State  .  .£41.488.12.  3 
County  .  901 .8.0 

Town  .  .  20,047.17.10 

62,437.18.  1 
Overplus  .  10.9.6 

62,448.  7.  7 


JOXa  BROWN  \ 

GILES  HARRIS  / 

SAMUEL  DYER  >  for  the  . 
JN°  PULLING  i  l°wn  °f 
MOSES  MAY  /  Boston- 


City  of  Boston,  Assessors’  Office,  February  17,  1864.  I  hereby 
certify  that  the  above  are  true  copies  from  the  earliest  books  of  the 
assessors  of  the  town  of  Boston,  now  in  the  custody  and  possession 
of  the  assessors  of  said  city  ;  that  in  adding  together,  at  the  end  of 


23 


“Valuation  Book,  Ward  No.  7,  1780,”  the  suras  at  the  foot  of  the 
several  pages  therein  contained,  the  footings  of  the  second  columns 
are  added  up  as  “Bents,”  and  those  of  the  fourth  as  “Faculty,”  and 
no  notice  is  taken  of  the  first  and  third  columns. 

Henry  Sargent, 

Secretary  to  the  Board  of  Assessors. 


,  G. 

VALUATION  IN  TAX  BOOKS  OF  BOSTON. 


Year. 

1784-6, 

1787. 

1788. 

1789. 

1790. 

1791. 

1792. 

1793. 

1794. 

1795. 

1796. 

1797. 
1798-9 
1800-1 


Parties  to  whom  taxed. 

Misses  Creese,  maiden  ladies . 

,,  ,,  single  ladies . 

,,  ,,  Considerable  Property  . 

55  55  . 

55  55  Virgins  &c . 

51  99  . 

,,  ,,  Old  Maids . 

,,  ,,  Maiden  Ladies . 

55  „  Virgins . 

99  99  . 

9  9  99  . 

Misses  Creese,  $1,000  ;  Wm.  Pelham,  $1,350 
W.  Pelham,  $1,350;  Miss  Creese,  $1,500 
Miss  Creese,  $1,500  ;  W.  Pelham,  $2,000 


Valuation. 

£300 

£300 

£300 

£375 

£400 

£400 

£400 

£500 

£500 

$1,700 

$1,000 

$2,350 

$2,850 

$3,500 


[Up  to  this  time,  the  valuation  and  tax  books  correspond  with  the  taking 
books.  The  figures  which  follow  are  from  the  taking  books  ;  the  valuation  in 
the  other  book  being  half  as  much,  from  this  time  until  1841,  since  which  all 
the  books  again  correspond.] 

1802-5.  Miss  Creese,  5,000  ;  W.  Pelham,  3,000  . $8,000 


1806.  Wm.  Pelham . $9,000 

1807-10.  Same  . $8,000 

1811.  John  McFarland  &  others . $10,000 

1812.  John  McFarland . $9,000 

1813.  Same  $8,400 

1814.  Same  $8,000 

1815.  Baldwin  &  Jones . $9,600 

1816.  Same  $11,000 


24 


1817.  Same  810,600 

1818-9.  Same  $11,800 

1820.  L.  C.  Bowles  &  others . 810,000 

1821.  Stodder  &  Frobisher . $10,000 

1822.  Same  $12,000 

1823.  Same  $14,000 

1824.  Same  $14,400 

1825-7.  Proprietors  of  Stone  Chapel . $15,400 

1828.  Same  . $16,000 

1829-31.  Proprietors  of  Trinity  Church . $16,000 

1832.  B.  C.  Frobisher . $17,000 

1833.  Sami.  Baker  &c . $17,000 

1834.  Swett  &  Roberts . $17,000 

1835.  Jos.  Brown,  Owner  Trinity  Church . $17,000 

1836.  G.  W.  Sherry . $17,000 

1837-8.  Davis  &  Palmer . $27,000 

1839-44.  Same  $28,000 

1845-6.  Proprietors  of  Trinity  Church . $40,000 

1847-8.  Same  $45,000 

1849-50.  J.  B.  Macomber . $45,000 

1851-3.  Same  $30,000 

1854-6.  Same  $33,000 

1857-60.  Same  $36,000 

1861-2.  Price  Estate . $36,000 


Copy, 


Attest : 


Clerk. 


Trials . 


L65824 


vol .  1ft . 


ISSUED  TO 


/  a  fez  ? 


(sa/,/ £ 


